Judge-backed court staff attorney pilot program bill moves out of committee

Legislation that would create a pilot program administered by the Indiana Judicial Center to assist trial courts when preparing and writing certain motions moved out of the House Committee on Courts and Criminal Code 11-0.

House Bill 1411, authored by Rep. Tom Washburne (R-Evansville) establishes the two-year pilot Circuit Court and Superior Court Staff Attorney Pilot Program. The bill calls for the program to be created and facilitated by the Indiana Judicial Center, which will report to the Commission on Courts for possible implementation statewide after the initial test period.

Jane Seigel, executive director of the Indiana Judicial Center, testified in support of the bill, as did former Indiana Chief Justice Randall Shepard. The Indiana Judges Association, Indiana Chamber of Commerce and the Indiana Manufacturers Association also support the legislation.

Seigel told Indiana Lawyer Thursday the Indiana Judicial Center is dedicated to helping trial judges across the state and this is an additional tool that can be implemented to help the courts.

The pilot program under the introduced legislation would make IJC staff attorneys – which are defined as an attorney, senior judge or third-year law student – available to judges to help prepare orders granting or denying dispositive motions. The language was amended in committee to replace “dispositve” with “complex” based on a suggestion from Rep. Ed DeLaney, D-Indianapolis, who signed on as a co-author.

The legislation is written broadly enough to leave a lot of the program details – including what kinds of cases falls under “complex” – up to the IJC, Washburne said. He thinks that some lawsuits are filed in some jurisdictions where there’s a perception the party can “blow that lawsuit by the judge” as the judge doesn’t have time to deal with motions to dismiss or for summary judgment and the case proceeds perhaps farther than necessary based on the law.

“Because judges don’t have many resources, a lot of those get through and cause a lot of problems for defendants,” he said. “Ultimately, having more resources will cut back on frivolous filings.”

A party in an action where the pilot is running may ask the court to have a staff attorney from the pilot program to assist the court in preparing a judicial opinion that explains the reasons for granting or denying the motion. A judge may also request the assistance of an IJC attorney.

The idea for this legislation came from Washburne, vice president and associate counsel for Old National Bancorp in Evansville, based on his experience managing litigation for the bank and his time as a law clerk for U.S. Judge S. Hugh Dillin.

Trial judges have high workloads but don’t have the same available resources as the federal courts do in writing decisions. Washburne said some judges have told him if they want to do real writing, they have to take it home. The pilot project attorneys can act as law clerks for trial judges.

The pilot program will be established in at least five counties: two with a population of less than 50,000; two with a population between 50,000 and 200,000; and one county with at least 200,000 residents.

In 2011, the number of cases disposed by a bench disposition – including dispositive motions – ranged between seven percent for civil torts to 18 percent for civil plenary cases, according to the fiscal impact statement for the legislation. The idea is this bill will help parties avoid lengthy litigation, and if state or local units of government are involved, would help reduce their costs of litigation.

The bill will be eligible for second reading next week in the House.